The mediation services and advice centers work effectively because the Japanese judiciary works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the American tort system, where the legal rules concerning both liability and non-economic damages "pain and suffering" are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries—which in turn makes courtroom outcomes variable and difficult to predict.
Tanase's article noted that Japanese insurance companies, compared to their American counterparts, have much lower incentives to avoid full legal compensation. This is because the Ministry of Finance regulates insurance firms' rates, guaranteeing a reasonable return, and also established compulsory loss-sharing arrangements among motor vehicle insurers. This made the insurance system more like a quasi-public social insurance program, Tanase argued, guaranteeing moderate benefits for the injured.
The result was a system that is vastly more efficient and reliable in delivering compensation than the American tort system. Tanase estimated that legal fees comprised only two percent of the total compensation paid to injured persons and that mediating and claims process costs amounted to about 0. In the United States, according to a survey in the late s, 24 percent of individuals hurt in motor vehicle accidents involving potential defendants hired a lawyer, and the figure went up to 57 percent for victims with "serious injuries" fractures, burns, or worse. When the claimant hires a lawyer, the defendant or her insurance company generally employ a lawyer too.
In consequence, according to two big studies of motor vehicle accident tort claims not just lawsuits , payments to lawyers equalled 47 percent of the total personal injury benefits paid by liability insurers to third-party accident victims. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or underinsured, which means that victims of their negligent driving will get little or nothing from the tort system. All this makes Japanese bureaucratic legalism look very attractive from a comparative standpoint. But Tanase's article, foreshadowing his more recent scholarship, questioned whether a legal system that emphasizes bureaucratic smoothness and efficiency, rather than the pursuit of justice and responsiveness to changing values, is all a society should aspire to.
The Japanese system, he pointed out, enabled especially aggressive claimants to obtain disproportionately higher compensation. And he feared that the low litigation rate and the emphasis on standardization would result in the stagnation of legal development, since courts were not constantly pushed to consider new arguments and improve the law. Thus, Tanase concluded, "Paradoxically, the very success of the Japanese elite in disarming the legal weaponry of the people inadvertently breeds the seed for its failure: Tanase elaborates on these themes in "The Moral Foundations of Tort Liability", in which he adds an additional threat to the legitimacy of this system.
People, he argues, want not only compensation for serious injuries caused by the negligence of others.
Just as importantly, they yearn for a more humane, "communitarian" response, "whereby tortfeasors face up to victims and reflect on how they may ease the victims' pain and suffering". Yet one might wonder whether Tanase's concerns, while normatively appealing, were and remain somewhat exaggerated. Like several other civil law states, Japan places a great emphasis on the rights of the tenant , and landlords are generally not allowed to unilaterally terminate leases without "just cause", a very narrowly construed concept.
Many landlords are forced to "buy out" their tenants if they wish to demolish buildings to make way for new development: Despite this emphasis on tenant rights, the government exercises a formidable eminent domain power and can expropriate land for any public purpose as long as reasonable compensation is afforded. This power was famously used in the wake of World War II to dismantle the estates of the defunct peerage system and sell their land to farmers at very cheap rates one historical reason for agriculture's support of LDP governments.
Narita International Airport is another well-known example of eminent domain power in Japan. The Code of Civil Procedure is the basic law on civil procedure. The reformed Code came into effect in After an initial complaint to the court, the Court schedules the first session of the oral proceeding. The court clerk serves a summons on the defendant to notify him of the date of the first session, along with a copy of the complaint and documentary evidence. The defendant's lawyer must then file an answer to the complaint. At the first session of the oral proceeding after the filing of the complaint and answer, the judge decides whether the case should proceed under the Preparatory Proceeding.
A Preparatory Proceeding is closed to the public and held chiefly to identify the key issues of the dispute. In a complex dispute, there are usually multiple Preparatory Proceedings. The Oral Proceedings are held in open court, either by a single judge or three judges. After the close proceedings, the court renders a judgment on the merits of the case. Japan's current corporate law is based upon the Commercial Code as amended through December 30, Under Japanese law the basic types of companies are:.
Criminal justice system of Japan. Before the Meiji period — , the powers of the Tokugawa shogunate , or the judges they appointed, possessed a large amount of discretion, which often resulted in the abuse of power. Capital punishment was the main measure of dealing with offenders in the criminal justice system. Under feudalism, authorities frequently used the death penalty against political rivals. However, after the Meiji Restoration , as Western culture was introduced, the government established new laws reflecting a gradually modernizing Japanese society.
In , criminal law and prison law were passed in an effort to bring Japan into line with Western countries. However, the rights of offenders did not become a main issue in the criminal justice system until the post-war period. Based on the new Constitution, Criminal Procedure Law was radically changed toward the adoption of an adversarial system.
Under this system, the roles of the police, the prosecutor, and the judge changed.
Law of Japan
Unfortunately, immediately following this innovation, a series of cases resulted in a miscarriage of justice partly because the police were not accustomed to the new system. Although a jury system came into force in , it was practically never used because of inflexibility in the ongoing criminal justice system at that time. In addition, professional judges have always enjoyed a high level of trust in Japanese society. After the war, the police began to carry guns instead of sabers, according to the advice of the United States.
Arguments were frequently made for reforming the main laws such as the Criminal Law , the Juvenile Law and the Prisons Law However, plans for reform were controversial because they addressed delicate issues, such as the introduction of protective measures to Criminal Law, juvenile punishment, or the abolition of the practice of imprisoning defendants in police cells.
Japanese society is relatively conservative in its approach to reforms and is generally inclined to oppose them.
The government attempts to reform older laws by issuing a series of supplements. In , a governmental advisory commission drafted forty principles to be included in the revision of the penal code that a few years later were used later as the basis of a provisional "Revised Penal Code of Japan", published in While this document itself does not remain as the present form of the penal code of Japan it was largely influential to its construction and has informed the judicial interpretation of the modern code.
The criminal justice system reflects the state's task of protecting individual interests in daily life.
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Crimes against life, person, and freedom include homicide, assault, bodily injury, forcible rape, indecent assault, and kidnapping. Crimes against property include theft, fraud, robbery, extortion, and embezzlement. The concept of theft has a very broad meaning and includes burglary, shoplifting, and stealing the goods in a car. Stealing bicycles from in front of railway stations is a typical theft according to criminal statistics. Crimes which significantly cause social disorder, like arson, indecent behavior in the public, and gambling, are usually placed in a category of crimes against society.
Bribery is considered a crime against the state. Police, prosecution, court, correction and after-care divisions each publish their own statistics as a yearbook. Because of the nationwide unitary system of these agencies, such a complete portrayal of the crime situation in Japan is possible. The number of reported crimes which follows is derived from the summary of the White Paper on Crime, for Japanese copyright law , Japanese patent law , and Japanese trademark law.
Family law in Japan. Basics of the Japanese employment law are established in the Japanese Constitution, which was framed in large part with an eye toward the U. As such, employment laws in Japan are very similar to those in the U. Most terms and conditions of employment are provided by the company's work rules, which may be drawn up and varied unilaterally.
About 42 per cent of the private sector workforce is employed in firms with fewer than ten employees. Consequently, these employers are exempt from the legal obligation to provide formal work rules in respect of their employees. Under the Japanese Constitution, citizens are guaranteed the right to maintain the minimum standards of a wholesome and cultured life art. These are to be maintained through the right to work art.
The Constitution also guarantees certain work-related rights. Wages, hours and other working conditions must be fixed by law art. Under the Industrial Safety and Health Law of ISHL , employers bear the major responsibility for the prevention of occupational disease and accident through an integrated scheme of insurance and safety and health management.
Since the commission makes basic policy while the NPA administers police affairs, the commission has control over the NPA. The commission is a governmental body responsible mainly for the administrative supervision of the police and coordination of police administration. It also oversees matters relating to police education, communication, criminal identification, criminal statistics and police equipment. To ensure its independence and neutrality, not even the Prime Minister is empowered to direct and give orders to the NPSC.
There are seven bureaus in the major cities, excluding Tokyo and the northern island of Hokkaido. Police law stipulates that each prefectural government, which is a local entity, shall have its own Prefectural Police PP. The PP is supervised by the Prefectural Public Safety Commission, which carries out all police duties within the boundaries of the prefecture. In practice, the PP forces are located in each of the 47 prefectures.
Originally created by the Japanese police, this system has been recently adopted by countries such as Germany and Singapore. However, its success depends on the human relationship between the police officers and the community people. At times, there is an excess of intervention by police. The Koban system rests on approximately 15, police boxes Hasshusho and residential police boxes Chuzaisho located throughout the country.
The total National Police Agency Budget for the fiscal year was , billion yen, of which Recruited police officers must immediately attend a three-part training course, consisting of preservice, on-the-job, and a comprehensive training course. Those recruited by the PP are enrolled in a 1-year preservice training course at their respective police academies.
Japan recognizes a large number of legal professions, however the number of lawyers is significantly fewer than in the United States. This is due to the fact that Japanese law is based on the Continental European civil law system and a very small number of lawyers advocates are complemented by large numbers of civil law notaries and scriveners. Japan introduced a new legal training system in as part of a justice system reform. The justice system reform has been criticized for failing to incorporate a gender perspective. In-house legal advisors at major corporations are almost entirely unregulated, although there has been a trend in the past decade towards attorneys moving in-house.
Japan's court system is divided into four basic tiers, Summary Courts, one District Court in each prefecture, eight High Courts and the Supreme Court. There is also one Family Court tied to each District Court. Provisions directly governing trial proceedings provide that admissions of testimony must be compelling. There are also rights guaranteeing a speedy and public trial, full opportunity to examine all witnesses, and legal counsel by lawyers employed by the state if the accused cannot afford a private lawyer.
The Penal Code was substantially revised in to reflect the growing influence of German law in Japan, and the French practice of classifying offenses into three types was eliminated. More important, where the old code had allowed very limited judicial discretion, the new one permitted the judge to apply a wide range of subjective factors in sentencing.
After World War II, occupation authorities initiated reform of the constitution and laws in general. Except for omitting offenses relating to war, the imperial family, and adultery, the Penal Code remained virtually identical to the version. The criminal procedure code, however, was substantially revised to incorporate rules guaranteeing the rights of the accused. The system became almost completely accusatorial, and the judge, although still able to question witnesses, decided a case on evidence presented by both sides.
The preliminary investigative procedure was suppressed. The prosecutor and defense counsel sat on equal levels, below the judge. Laws on indemnification of the wrongly accused and laws concerning juveniles, prisons, probation, and minor offenses were also passed in the postwar years to supplement criminal justice administration. Then, with the Police Law and Code of Criminal Procedure , responsibility of investigations has been defined as uniquely resting with police officers.
In order to fulfill this responsibility, Criminal Investigation Departments were set up in each Prefectural Police Departments. The nation's criminal justice officials follow specified legal procedures in dealing with offenders. Once a suspect is arrested by police officers, the case is turned over to attorneys in the Supreme Public Prosecutors Office, who are the government's sole agents in prosecuting lawbreakers. Under the Ministry of Justice 's administration, these officials work under Supreme Court rules and are career civil servants who can be removed from office only for incompetence or impropriety.
Prosecutors presented the government's case before judges in the Supreme Court and the four types of lower courts: Penal and probation officials administer programs for convicted offenders under the direction of public prosecutors see Judicial System of Japan. After identifying a suspect, police have the authority to exercise some discretion in determining the next step. If, in cases pertaining to theft, the amount is small or already returned, the offense petty, the victim unwilling to press charges, the act accidental, or the likelihood of a repetition not great, the police can either drop the case or turn it over to a prosecutor.
Reflecting the belief that appropriate remedies are sometimes best found outside the formal criminal justice mechanisms, in over 70 percent of criminal cases were not sent to the prosecutor. Police also exercise wide discretion in matters concerning juveniles. Police are instructed by law to identify and counsel minors who appear likely to commit crimes, and they can refer juvenile offenders and non-offenders alike to child guidance centers to be treated on an outpatient basis.
Police can also assign juveniles or those considered to be harming the welfare of juveniles to special family courts. These courts were established in in the belief that the adjustment of a family's situation is sometimes required to protect children and prevent juvenile delinquency. Family courts are run in closed sessions, try juvenile offenders under special laws, and operate extensive probationary guidance programs.
The cases of young people between the ages of fourteen and twenty can, at the judgment of police, be sent to the public prosecutor for possible trial as adults before a judge under the general criminal law. Police have to secure warrants to search for or seize evidence. A warrant is also necessary for an arrest, although if the crime is very serious or if the perpetrator is likely to flee, it can be obtained immediately after arrest.
Within forty-eight hours after placing a suspect under detention, the police have to present their case before a prosecutor, who is then required to apprise the accused of the charges and of the right to counsel. Within another twenty-four hours, the prosecutor has to go before a judge and present a case to obtain a detention order. Suspects can be held for ten days extensions are granted in almost all cases when requested [ citation needed ] , pending an investigation and a decision whether or not to prosecute.
In the s, some suspects were reported to have been mistreated during this detention to exact a confession. These detentions often occur at cells within police stations, called daiyo kangoku. A suspect can be taken into custody after arrest and before prosecution for up to 23 days. Prosecution can be denied on the grounds of insufficient evidence or on the prosecutor's judgment. Under Article of the Code of Criminal Procedure , after weighing the offender's age, character, and environment, the circumstances and gravity of the crime, and the accused's rehabilitative potential, public action does not have to be instituted, but can be denied or suspended and ultimately dropped after a probationary period.
Because the investigation and disposition of a case can occur behind closed doors and the identity of an accused person who is not prosecuted is rarely made public, an offender can successfully reenter society and be rehabilitated under probationary status without the stigma of a criminal conviction. Institutional safeguards check the prosecutors' discretionary powers not to prosecute. Lay committees are established in conjunction with branch courts to hold inquests on a prosecutor's decisions. These committees meet four times yearly and can order that a case be reinvestigated and prosecuted.
Victims or interested parties can also appeal a decision not to prosecute. Most offenses are tried first in district courts before one or three judges, depending on the severity of the case. Defendants are protected from self-incrimination , forced confession , and unrestricted admission of hearsay evidence. In addition, defendants have the right to counsel, public trial , and cross-examination.
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Trial by jury was authorized by the Jury Law but was suspended in A new lay judge law was enacted in and came into effect in May , but it only applies to certain serious crimes. The judge conducts the trial and is authorized to question witnesses, independently call for evidence, decide guilt, and pass sentence. The judge can also suspend any sentence or place a convicted party on probation. Should a judgment of not guilty be rendered, the accused is entitled to compensation by the state based on the number of days spent in detention.
Criminal cases from summary courts, family courts, and district courts can be appealed to the high courts by both the prosecution and the defense. Criminal appeal to the Supreme Court is limited to constitutional questions and a conflict of precedent between the Supreme Court and high courts. The criminal code sets minimum and maximum sentences for offenses to allow for the varying circumstances of each crime and criminal. Penalties range from fines and short-term incarceration to compulsory labor and the death penalty. Heavier penalties are meted out to repeat offenders.
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Capital punishment consists of death by hanging and is usually imposed for multiple homicides. After a sentence is finalized, the only recourse for a convict to gain an acquittal is through a retrial. A retrial can be granted if the convicted person or their legal representative show reasonable doubt about the finalized verdict, such as clear evidence that past testimony or expert opinions in the trial were false. Six citizens became lay judges and joined three professional judges to determine the verdict and sentence the defendant. Japan belongs to an inquisitory system of criminal process.
Therefore, a judge oversees the proceedings and also determines the guilt and the sentence of the accused. The citizen lay judges as well as professional judges are allowed to put forth questions to defendants, witnesses and victims during the trial. The new system aims to invite participation of the wider community and also provide a speedier, more democratic justice system, according to Eisuke Sato , the justice minister. The first trial by lay judge lasted four days, while some comparable criminal cases may last years under the old system.
The historic trial of year-old Katsuyoshi Fujii who stabbed his year-old neighbor to death had substantial media attention. The selected lay judges must be voters, at least 20 years old, and possess a secondary level education. Professional lawyers and politicians may not serve as lay judges in the new system.
At least one judge must concur with the majority vote from the lay judges in regards to a guilty verdict, however a majority not guilty verdict by the lay judges will stand. During the inaugural case, the citizens relied on the professional judges to help ascertain a sentence for the verdict decided upon, but felt confident in their interpretation of the trial arguments presented by the prosecution and defense. Lobbying by human rights groups and the Japan Federation of Bar Associations resulted in the passing of a judicial reform bill in May, , which introduced a lay-judge system in , which is often confused with jury system in common law countries.
Rasmusen of Indiana University examine if the accusation is in fact warranted. One is that judges who come under the control of central bureaucracy are pressured to pass a guilty verdict, ensuring high conviction. Another possibility is that, given that the non-jury system under inquisition system has predictable ruling on guilt, Japan's understaffed prosecutors working on low budgets only bring the most obviously guilty defendants to trial, and do not file indictments in cases in which they are not certain they can win.
The most likely reason why the Japanese conviction rate is so high is that prosecutors have a broad discretion to prosecute or not, taking into account many factors similar to sentencing factors in Western countries. The prosecutors may decide, for example, not to prosecute someone even if there is sufficient evidence to win at trial, because of the circumstances of the crime or accused.
Article of the Japanese Code of Criminal Procedure states: All Japanese court rulings are accessible in digital format; the two academics examined every case after World War II in which the court found the defendant not guilty. The result is mixed. Simple statistical analysis shows that the judge's later career tends to be negatively affected by a non-guilty verdict.
However, by examining the individual cases, the two academics found that all of those cases which negatively affected judges' careers had political implications such as labour law or electoral law and that the facts of the case i. However, judges delivered 'not guilty' verdicts on technicalities such as statutes of limitation or constitutional arguments, which were subsequently reversed in a higher court.
In cases in which the judge delivered a 'not guilty' verdict because they ruled that there was insufficient evidence to ascertain that the defendants did the accused deed, the judge suffered no negative consequence. For this reason, the paper argued that Japanese judges are politically conservative in legal interpretation but are not biased in matter of fact. In the matter relating to Japanese prosecutors being extremely cautious, the paper found ample evidence for it. According to a cited research, in the U.
The paper attributes this difference to greater predictability of the outcome in Japanese cases. This is due to two reasons. One is that it is the judge rather than the jury who determines the verdict. As judges "have seen it all before" and the lawyers on both sides "have seen them seeing it", as they can read the judge's previous ruling which includes written reasoning for the previous verdict , the way that the judge thinks and argues is very predictable. Secondly, Japanese trials before the institution of the current lay judge system, were discontinuous. The defense and the prosecutor would first gather in front of the judges and present the issue.
Then, the court would enter recess and both sides would go back to prepare their case. As they reconvened on different dates, they would then present each case which the judges examined, the court would be put in recess again and each side would go back to gather further evidence.